Citation Nr: 0839374
Decision Date: 11/17/08 Archive Date: 11/25/08
DOCKET NO. 05-25 057 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased evaluation in excess of 40
percent for a herniated lumbar disc, status post lumbar
laminectomy.
2. Entitlement to an increased evaluation in excess of 20
percent for residuals of a fractured left os calcis with
arthritis.
3. Entitlement to an increased evaluation in excess of 10
percent for residuals of a fractured right os calcis with
arthritis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Christine C. Kung, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1978 to October
1983.
This matter comes on appeal before the Board of Veterans'
Appeals (Board) from a May 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Cleveland, Ohio (RO) which continued (1) a 40 percent
evaluation for a herniated lumbar disc, status post lumbar
laminectomy; (2) a 20 percent evaluation for residuals of a
fractured left os calcis with arthritis; and (3) a 10 percent
evaluation for residuals of a fractured right os calcis with
arthritis.
The veteran was scheduled for a December 2006 Travel Board
hearing but did not appear. Thus, his hearing request is
considered withdrawn.
FINDINGS OF FACT
1. The veteran's service-connected low back disability is
not manifested by ankylosis of the entire thoracolumbar
spine; nor is it productive of incapacitating episodes having
a total duration of at least 6 weeks during the past 12
months requiring bed rest prescribed by a physician.
2. The veteran's residuals of fracture of the left os calcis
are manifested by pain and tenderness to palpation of the
heel, subtalar fusion, some flattening of the calcaneus, and
10 degrees dorsiflexion and 30 degrees of planter flexion in
the left ankle.
3. The veteran's residuals of fracture of the right os
calcis are manifested by pain and tenderness to palpation of
the heel, some flattening of the heel, and 10 degrees
dorsiflexion and 30 degrees of planter flexion in the right
ankle.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 40 percent
for a herniated lumbar disc, status post lumbar laminectomy,
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes
5003, 5242, 5243 (2008).
2. The criteria for a 30 percent evaluation for residuals of
a fractured left os calcis with arthritis have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007);
38 C.F.R. § 4.71a, Diagnostic Codes 5284 (2008).
3. The criteria for a 30 percent evaluation for residuals of
a fractured right os calcis with arthritis have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007);
38 C.F.R. § 4.71a, Diagnostic Codes 5284 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The Board finds that VA has met all statutory and regulatory
VCAA notice and duty to assist requirements. See 38 U.S.C.A.
§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In an October 2005 letter, VA informed the veteran of the
evidence necessary to substantiate his claims, evidence VA
would reasonably seek to obtain, and information and evidence
for which the veteran was responsible. A March 2006 letter
provided the veteran with notice of the type of evidence
necessary to establish a disability rating and effective
date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). VCAA compliant notice was not received prior to the
initial rating decision. Despite the inadequate timing of
this notice, the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). There is no indication
that any notice deficiency reasonably affects the outcome of
this case. Thus, the Board finds that any failure is
harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr.
5, 2006).
According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008),
for an increased-compensation claim, 38 U.S.C.A. § 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that to substantiate his or her a claim: (1) the
claimant must provide, or ask the Secretary to obtain,
medical or lay evidence demonstrating a worsening or increase
in severity of the disability and the effect that worsening
has on the claimant's employment and daily life; (2) if the
Diagnostic Code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life, the Secretary must
provide at least general notice of that requirement to the
claimant; (3) the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life; and (4) the
notice must provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation.
While the veteran was not provided specific information in
accordance with Vazquez-Flores v. Peake in the VCAA notices
cited above, cumulatively, the veteran was informed of the
necessity of providing medical or lay evidence demonstrating
a worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment and
daily life. The veteran was not provided VCAA notice of the
criteria necessary for entitlement to a higher disability
rating such as in the form of a specific measurement or test
result. VCAA notice informed the veteran that should an
increase in disability be found, a disability rating will be
determined by applying relevant diagnostic code(s); and
provided examples of pertinent medical and lay evidence that
the claimant may submit (or ask the Secretary to obtain)
relevant to establishing entitlement to increased
compensation.
Despite any notice deficiency, the Board finds that the
presumption of prejudice on VA's part has been rebutted in
this case by the following: (1) based on the communications
sent to the veteran over the course of this appeal, the
veteran clearly has actual knowledge of the evidence he is
required to submit in this case; and (2) based on the
veteran's contentions as well as the communications provided
to the veteran by the VA, it is reasonable to expect that the
veteran understands what was needed to prevail. See Sanders
v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The RO provided
the veteran with applicable Diagnostic Codes under which the
veteran has been rated in a July 2005 statement of the case.
The veteran has been afforded ample opportunity to submit
additional evidence in support of his claim.
The veteran's private treatment records and VA examinations
have been associated with the claims file. VA has provided
the veteran with every opportunity to submit evidence and
arguments in support of his claim, and to respond to VA
notices. The veteran and his representative have not made
the Board aware of any additional evidence that needs to be
obtained prior to appellate review. In a July 2005
statement, the veteran contends that the March 2004 VA
examinations were inadequate. The Board upon reviewing the
examination reports finds that they are sufficient to
properly adjudicate this matter. Therefore, the Board finds
that all relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained. The
record is complete and the case is ready for review.
B. Law
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities. The
percentage ratings are based on the average impairment of
earning capacity and individual disabilities are assigned
separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.1 (2008). If two evaluations are potentially
applicable, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that evaluation; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (2008). Any reasonable
doubt regarding a degree of disability will be resolved in
favor of the veteran. 38 C.F.R. § 4.3 (2008).
VA must assess the level of disability from the date of
initial application for service connection and determine
whether the level of disability warrants the assignment of
different disability ratings at different times over the life
of the claim, a practice known as a "staged rating." See
Fenderson v. West, 12 Vet. App 119 (1999).
The United States Court of Appeals for Veterans Claims (Court
or CAVC) has also held that staged ratings are appropriate
for an increased rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings. Hart
v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal
focus for adjudicating an increased rating claim is on the
evidence concerning the state of the disability from the time
period one year before the claim was filed until VA makes a
final decision on the claim. Id. The Board has considered
whether staged ratings are for consideration; however, the
evidence of record does not establish distinct time periods
where the veteran's service-connected disabilities result in
symptoms that would warrant different ratings.
Arthritis due to trauma is rated as degenerative arthritis.
38 C.F.R. § 4.71a, Diagnostic Code 5010 (2008). Under
Diagnostic Code 5003, degenerative arthritis is rated based
on limitation of motion under the appropriate diagnostic
codes for the specific joint involved. 38 C.F.R. § 4.71a,
Diagnostic Code 5003 (2008). However, when the limitation of
motion of the specific joint or joints involved is
noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion, to be combined, not added under Diagnostic Code 5003.
Id. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. Id. In the absence of
limitation of motion, a 10 percent evaluation is assigned
with x-ray evidence of involvement of two or more major
joints; a 20 percent rating is assigned with x- ray evidence
of involvement of two or more major joints with occasional
incapacitating exacerbations. Id.
The General Rating Formula for Diseases and Injuries of the
Spine includes Diagnostic Code 5242 (degenerative arthritis)
and Diagnostic Code 5243 (intervertebral disc syndrome) and
provides disability ratings for diseases or injuries of the
spine, with or without symptoms such as pain, stiffness, or
aching in the area of the spine affected by residuals of
injury or disease. See 38 C.F.R. § 4.71a, Diagnostic Codes
5242 and 5243 (2008); see also 38 C.F.R. § 4.20 (2008).
The schedular criteria for the rating of spine disabilities
provides that degenerative arthritis of the spine and
intervertebral disc syndrome may be evaluated on the basis of
limitation of motion under the General Rating Formula for
Disease and Injuries of the Spine. See 38 C.F.R. § 4.71a,
Diagnostic Codes 5242 and 5243 (2008). Under the General
Formula, a 10 percent evaluation is assigned with forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees; or combined range of motion
of the thoracolumbar spine greater than 120 degrees, but not
greater than 235 degrees; or muscle spasm, guarding, or
localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or vertebral body fracture with loss
of 50 percent or more of the height. Id. A 20 percent
evaluation is assigned for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, a combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. Id. A 40 percent evaluation
is assigned for forward flexion of the thoracolumbar spine at
30 degrees or less; or, favorable ankylosis of the entire
thoracolumbar spine. Id. A 50 percent evaluation is
assigned for unfavorable ankylosis of the entire
thoracolumbar spine. Id. A 100 percent evaluation is
assigned for unfavorable ankylosis of the entire spine. Id.
The General Formula for Diseases and Injuries of the Spine
also, in pertinent part, provide the following Notes:
Note (1): Evaluate any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes,
normal forward flexion of the thoracolumbar spine is zero to
90 degrees; extension is zero to 30 degrees; left and right
lateral flexion are zero to 30 degrees; and left and right
lateral rotation are zero to 30 degrees. The combined range
of motion refers to the sum of the range of forward flexion,
extension, left and right lateral flexion, and left and right
rotation. The combined normal range of motion of the
thoracolumbar spine is 240 degrees. The normal ranges of
motion for each component of the spinal motion provided in
this note are the maximum that can be used for calculation of
the combined range of motion. Id.
Under the applicable criteria, intervertebral disc syndrome
(preoperatively or postoperatively) is to be evaluated either
under the general rating for disease and injuries of the
spine (outlined above) or under the formula for rating
intervertebral disc syndrome based on incapacitating
episodes, whichever method results in the higher evaluation
when all disabilities are combined under 38 C.F.R. § 4.25.
Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a
40 percent evaluation is assigned with incapacitating
episodes having a total duration of at least 4 weeks but less
than 6 weeks during the past 12 months; and a 60 percent
evaluation is assigned with incapacitating episodes having a
total duration of at least 6 weeks during the past 12 months.
38 C.F.R. § 4.71a, Diagnostic Code 5243 (2008).
For purposes of evaluations under Diagnostic Code 5243, an
incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician. Id. at Note (1). If intervertebral disc syndrome
is present in more than one spinal segment, provided that the
effects in each spinal segment are clearly distinct, evaluate
each segment on the basis of incapacitating episodes or under
the General Rating Formula for Diseases and Injuries of the
Spine, whichever method results in a higher evaluation for
that segment. Id. at Note (2).
Disabilities of the ankle are rated under Diagnostic Codes
5270 through 5274. See 38 C.F.R. § 4.71a (2008).
Diagnostic Code 5270 assigns a 20 percent evaluation for
ankylosis of the ankle in plantar flexion, less than 30
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2008). A
30 percent evaluation is assigned for ankylosis of the ankle
in plantar flexion, between 30 and 40 degrees, or in
dorsiflexion, between zero and 10 degrees. Id. A 40 percent
evaluation is assigned for ankylosis of the ankle in plantar
flexion at more than 40 degrees, or in dorsiflexion at more
than 10 degrees or with an abduction, adducton, inversion or
eversion deformity. Id.
Limitation of motion of the ankle is evaluated under
Diagnostic Code 5271. A 10 percent evaluation is assigned
for moderate limitation of the ankle, and a maximum 20
percent evaluation is assigned for marked limitation of
motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2008). The
Board notes that normal ankle dorsiflexion is from 0 to 20
degrees, and normal ankle plantar flexion is from 0 degrees
to 45 degrees. See 38 C.F.R. § 4.71a, Plate II.
Diagnostic Code 5272 assigns a 10 percent evaluation for
ankylosis of the subastragalar or tarsal joint in good
weight-bearing position, and assigns a 20 percent evaluation
for ankylosis of the subastragalar or tarsal joint in poor
weight-bearing position. 38 C.F.R. § 4.71a, Diagnostic Code
5272 (2008).
Diagnostic Code 5273 assigns a 10 percent evaluation for
malunion of the os calcis or astraglus with moderate
deformity, and assigns a 20 percent evaluation with marked
deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5273 (2008).
Diagnostic Code 5274 assigns a 20 percent evaluation for
astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Code 5274
(2008).
Service-connected residuals of a fractured left os calsis and
residuals of a fractured right os calsis may also be rated
under Diagnostic Code 5284 pertaining to other foot injuries.
Diagnostic Code 5284 assigns a 10 percent evaluation for a
moderate foot injury; a 20 percent evaluation for a
moderately severe foot injury; and a 30 percent evaluation
for a severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code
5284 (2008). The Board notes that words such as "severe" and
"moderate" are not defined in the Rating Schedule. Rather
than applying a mechanical formula, VA must evaluate all
evidence, to the end that decisions will be equitable and
just. 38 C.F.R. § 4.6 (2008). Although the use of similar
terminology by medical professionals should be considered, is
not dispositive of an issue. Instead, all evidence must be
evaluated in arriving at a decision regarding a request for
an increased disability rating. 38 U.S.C.A. § 7104 (West
2002); 38 C.F.R. §§ 4.2, 4.6 (2008).
In evaluating disabilities of the musculoskeletal system, it
is necessary to consider, along with the schedular criteria,
functional loss due to flare-ups of pain, fatigability,
incoordination, pain on movement, and weakness. DeLuca v.
Brown, 8 Vet. App. 202 (1995). Functional loss may be due to
due to pain, supported by adequate pathology and evidenced by
visible behavior of the claimant undertaking the motion. 38
C.F.R. § 4.40 (2008). Pain on movement, swelling, deformity,
or atrophy of disuse are relevant factors in regard to joint
disability. 38 C.F.R. § 4.45 (2008). Painful, unstable, or
malaligned joints, due to a healed injury, are entitled to at
least the minimal compensable rating for the joint. 38 C.F.R.
§ 4.59 (2008).
Rating by analogy is appropriate for an unlisted condition
where a closely related condition, which approximates the
anatomical localization, symptomatology, and functional
impairment, is available. 38 C.F.R. § 4.20 (2008).
Pyramiding, that is the evaluation of the same disability, or
the same manifestation of a disability, under different
diagnostic codes, is to be avoided when evaluating a
veteran's service-connected disability. 38 C.F.R. § 4.14
(2008). However, it is possible for a veteran to have
separate and distinct manifestations from the same injury
which would permit rating under several diagnostic codes; the
critical element in permitting the assignment of several
evaluations under various diagnostic codes is that none of
the symptomatology for any one of the conditions is
duplicative or overlapping with the symptomatology of the
other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-
62 (1994).
C. Analysis
1. Herniated Lumbar Disc, Status Post Lumbar Laminectomy
A September 2003 emergency room report shows that the veteran
was brought in by ambulance due to back and leg pain. It was
noted that the veteran had two prior disc surgeries, with a
total of four to five discs removed, and some nerve surgery
involving the right lower extremity. He had severe pain to
palpation of the spine. There was no palpable spasm
appreciated. The exacerbation of pain caused radiation down
the sciatica nerve. He was tender in the sciatic notch.
Straight leg raising was not attempted. Deep tendon reflexes
were good in both knees and ankles; they were all normal.
Pin sensation was also normal on both sides. The veteran was
treated with morphine and oral medication to use at home.
The veteran was advised to follow up with his surgeon the
next day. The physician stated that at the time of
dictation, the veteran was able to sit up on the side of the
bed and was willing to try it at home. The veteran was
diagnosed with an exacerbation of chronic low back pain and
sciatica.
During a March 2004 VA examination, the veteran reported
increasing back pain and occasional leg pain. He reported
having flare-ups two to three times a year, in which he was
bedridden for several weeks to a month before he could
function again. The veteran indicated that he had not worked
since July 2003. The veteran wore a back brace at times and
used a cane. When there was no flare-up of symptomatology,
the veteran reported that he could be up a half hour at a
time. He indicated that repetitive bending and lifting
caused increased pain, tenderness, and fatigability. At the
time of examination, the veteran was ambulating with a cane.
He was not wearing a back brace.
Physical examination showed that the veteran had tenderness
and soreness across the lumbar spine. The veteran had 80 out
of 90 degrees forward flexion, limited by pain. He could
bend and rotate 20 out of 30 degrees, limited by pain. He
could raise on his toes and heels holding on for support.
Straight leg raising was negative in a seated position.
Reflexes were noted to be somewhat diminished to normal, and
equal in the knee and ankle. Sensation and strength were
equal in both lower extremities. March 2004 x-rays of the
lumbar spine show that the veteran had minimal arthritic
changes of the lumbosacral spine with narrowing of disc
spaces between L3 and L4, L5, and L6.
The veteran indicated in his July 2005 substantive appeal
that his back pain is more severe than indicated during his
VA examination. He stated that his pain was continuous, that
he was unable to stand at times due to all his combined
disabilities, and that he was unable to sit at times for long
or short durations.
The veteran's low back disability has been rated as analogous
to intervertebral disc syndrome under Diagnostic Code 5243.
He is currently assigned a 40 percent evaluation. The Board
notes that medical evidence of record shows that the veteran
has arthritic changes in the lumbosacral spine. The
schedular criteria for the rating of spine disabilities
evaluates both degenerative arthritis of the spine and
intervertebral disc syndrome based on limitation of motion
under the General Rating Formula for Disease and Injuries of
the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and
5243 (2008). In the present case, the veteran's herniated
lumbar disc, status post lumbar laminectomy, is not shown to
result in unfavorable ankylosis of the entire thoracolumbar
spine to warrant a higher 50 percent evaluation even with
consideration for functional loss due to pain. Id. The
veteran's spine was not shown to be in fixation during the
March 2004 VA examination. The veteran had 80 degrees
flexion and 20 degrees lateral bending and rotation.
Diagnostic Code 5243 for intervertebral disc syndrome also
contemplates ratings based on incapacitating episodes. See
38 C.F.R. § 4.71a, Diagnostic Code 5243 (2008). The Board
has considered whether the veteran's service-connected back
disability has resulted in incapacitating episodes and the
duration of any such episodes as described under Diagnostic
Code 5243. Although the veteran reported during the March
2004 VA examination that he had flare-ups occurring two to
three times a year, in which he was bedridden for several
weeks to a month, there is no objective supporting medical
evidence demonstrating incapacitating episodes requiring bed
rest prescribed by a physician in the past year to warrant a
higher evaluation under Diagnostic Code 5243. Id. The
veteran was seen in the emergency room on September 2003 for
an exacerbation of chronic low back pain and sciatica.
Although this episode may be analogous to an incapacitating
episode, it does not appear that the episode lasted for more
than one day. The emergency note shows that the veteran was
advised to contact his surgeon the next day, was able to sit
up on the side of the bed at the time of dictation, and was
encouraged to try sitting up at home when he was discharged.
Absent objective medical evidence of incapacitating episodes
having a total duration of at least 6 weeks during the
applicable 12 month period; the Board finds that a higher 60
percent evaluation is not warranted. Id.
The veteran is not shown to warrant a higher evaluation by
combining separate evaluations for chronic orthopedic and
neurologic manifestations with evaluations for all other
disabilities. See 38 C.F.R. § 4.71a, Diagnostic Code 5243
(2008). The Board notes in this regard, that the veteran
would only warrant a 10 percent evaluation for chronic
orthopedic manifestations based on limitation of motion of
the thoracolumbar spine. During the March 2004 VA
examination, the veteran had 80 degrees forward flexion and
160 degrees combined range of motion. A 10 percent
evaluation is assigned with forward flexion of the
thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or combined range of motion of the
thoracolumbar spine greater than 120 degrees, but not greater
than 235 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code
5242. Although the September 2003 emergency room report
indicates a diagnosis of sciatica, the veteran is not shown
to exhibit more than mild to moderate neuritis, neuralgia, or
paralysis of the sciatic nerve to warrant a higher evaluation
by combining separate evaluations for chronic orthopedic and
neurologic manifestations. See 38 C.F.R. § 4.124a,
Diagnostic Codes 8520, 8620, 8720 (2008). A September 2003
emergency room report shows that deep tendon sensation and
pin sensation was normal in the lower extremities. VA
examination of the lower extremities in March 2004 showed
somewhat diminished to normal reflexes; however, sensation
and strength were normal and equal in both lower extremities.
Medical evidence does not indicate neuritis, neuralgia, or
paralysis of the sciatic nerve to a degree that when combined
with the demonstrated orthopedic manifestations of the
veteran's low back disability would result in an evaluation
in excess of 40 percent.
In making this determination, the Board has considered the
veteran's statements in support of his claim, indicating that
he has continuous back pain which interferes with his ability
to stand and sit for long or short durations. The Board has
considered, along with the schedular criteria, functional
loss due to flare-ups of pain, fatigability, incoordination,
pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45
(2008); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).
However, the functional loss due to pain has already been
considered in the veteran's assigned 40 percent evaluation.
Thus, the Board finds that an increased evaluation for a
herniated lumbar disc, status post lumbar laminectomy, is not
warranted.
2. Residuals of a Fractured Left Os calsis, Residuals of a
Fractured Right Os calcis
On VA examination in March 2004, the veteran reported
progressive problems with increasing pain, soreness and
tenderness in his feet. He reported problems with prolonged
standing and walking more than one-half hour at a time
because of bilateral foot pain. The veteran reported that he
was able to do normal activities albeit with difficulty. He
stated that he had been disabled for the previous four years
after having last run his own business for three years up
until July 2003. The veteran reported no flare-ups
associated with his feet, but did report increasing pain,
soreness, fatigue, and endurance with repetitive use,
prolonged standing, and walking. On examination, the veteran
could raise from his toes and heels, with difficulty and
pain. There was pain and tenderness to palpation of the
right and left heel. There was flattening of the heel noted
on the right and left side. No other foot deformity was
identified. The veteran had good ankle motion bilaterally,
from 10 degrees dorsiflexion to 30 degrees of planter
flexion. On the left foot, there was no subtalar motion as
there was a fusion. March 2004 x-rays reflect minimal
degenerative arthritic changes of the first
metatarsalphalangeal joints and some of the interphalangeal
joints of both feet. There was no recent fracture or
dislocation. A metallic screw was seen through the left os
calcis. The examiner concluded that the veteran would have
difficulty doing physical work in anything requiring
prolonged standing, climbing, or squatting, and was limited
to sedentary work.
Service-connected residuals of a fractured left os calsis and
residuals of a fractured right os calsis have been rated
under Diagnostic Codes 5271 and 5273, respectively. As the
Board will discuss below, a higher evaluation is not
warranted under the provisions for disabilities of the
ankles. The Board finds, however, that residuals of a
fractured left os calsis and residuals of a fractured right
os calsis may also be rated under Diagnostic Code 5284
pertaining to other foot injuries. In this case, the Board
finds that increased evaluations are warranted under
Diagnostic Code 5284.
Service-connected residuals of a fractured left os calcis
with arthritis are currently assigned a 20 percent evaluation
under Diagnostic Code 5271 for limitation of motion of the
ankle. A 20 percent evaluation is the maximum evaluation
available under Diagnostic Code 5271. See 38 C.F.R. § 4.71a,
Diagnostic Code 5271 (2007). Therefore, a higher evaluation
is not available under that Diagnostic Code.
The veteran is not shown to have malunion of the left os
calcis or astragalus with marked deformity to warrant a
separate evaluation under Diagnostic Code 5273. See 38
C.F.R. § 4.71a, Diagnostic Codes 5273 (2008). Although March
2004 x-rays show that the veteran had a metallic screw
through the left os calcis; there was no indication of
malunion. X-rays showed no recent fracture or dislocation.
The March 2004 noted some loss and flattening of the
veteran's calcaneus on the left side; however, no other foot
deformity was noted or identified.
Residuals of a fractured right os calcis with arthritis are
rated as analogous to malunion of the os calcis with moderate
deformity. See 38 C.F.R. § 4.71a, Diagnostic Code 5010-5273.
March 2004 x-rays do not indicate malunion of the os calcis.
X-rays showed no recent fracture or dislocation. Although
the March 2004 VA examination indicates some flattening of
the heel; the veteran is not shown to have marked deformity
of the ankle to warrant a higher evaluation under Diagnostic
Code 5273.
A March 2004 VA examination reflects good ankle motion from
10 degrees dorsiflexion to 30 degrees of planter flexion.
Even with consideration of the veteran's pain, medical
evidence does not reflect marked limitation of motion in the
right ankle to warrant 20 percent evaluation under that
Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5271
(2008).
The veteran is not entitled to a higher evaluation under
other provisions of the code pertaining to the ankle. The
veteran is not shown to have ankylosis of the left or right
ankle in plantar flexion or ankylosis of the subastragalar or
tarsal joint at any time during the appeal period to warrant
an evaluation under Diagnostic Codes 5270 and 5272. See 38
C.F.R. § 4.71a, Diagnostic Codes 5270 and 5272 (2008). As
noted above, a March 2004 VA examination reflects good ankle
motion bilaterally. Astragalectomy is not indicated in this
case; thus, Diagnostic Code 5274 does not apply. 38 C.F.R. §
4.71a, Diagnostic Codes 5274 (2008).
The veteran's residuals may also be rated as analogous to
other foot injuries under Diagnostic Code 5284. The medical
record shows that the veteran's residuals have increased so
as to be more analogous to a severe right foot injury under
Diagnostic Code 5284. See 38 C.F.R. § 4.71a, Diagnostic Code
5284 (2008). The March 2004 VA examination reflects pain and
tenderness to palpation of the right and left heel;
flattening of the heel bilaterally, subtalar fusion in the
left foot, and arthritic changes in the first
metatarsalphalangeal joints and some of the interphalangeal
joints of both feet. The VA examiner stated that the
veteran would have difficulty doing physical work in anything
requiring prolonged standing, climbing, or squatting, and was
limited to sedentary work. In light of the foregoing, the
Board finds that a 30 percent evaluation is warranted for
residuals of a fractured left os calsis with arthritis. A 30
percent evaluation is warranted for residuals of a fractured
right os calsis with arthritis. The veteran's functional
loss due to pain has been considered in assigning the 30
percent evaluations under Diagnostic Code 5284 for a severe
foot injury. See 38 C.F.R. §§ 4.40, 4.45 (2008); DeLuca v.
Brown, 8 Vet. App. at 206-7.
The Board has considered whether the veteran is entitled to
higher ratings under other codes pertaining to the foot.
However, the veteran is not shown to exhibit more than mild
to moderate acquired flatfoot, and service-connected
residuals do result in symptomatology described for acquired
claw foot or symptoms analogous to malunion or nonunion of
tarsal or metatarsal bones to warrant a higher evaluation
under Diagnostic Codes 5276, 5278, or 5283. See 38 C.F.R. §
4.71a, Diagnostic Codes 5276, 5278, and 5283 (2008).
D. Conclusion
In evaluating the veteran's claims, the Board has also
considered the potential application of other various
provisions, including 38 C.F.R. § 3.321(b)(1), for
exceptional cases where schedular evaluations are found to be
inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589
(1991). However, the veteran's disabilities have not been
shown to cause interference with employment beyond that
contemplated by the Schedule for Rating Disabilities, have
not necessitated frequent periods of hospitalization, and
have not otherwise rendered impractical the application of
the regular schedular standards utilized to evaluate the
severity of the disability. Thus, the Board finds that the
requirements for referral for an extraschedular evaluation
under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v.
Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App.
218 (1995).
The preponderance of the evidence is against the veteran's
claim for a higher evaluation for a herniated lumbar disc,
status post lumbar laminectomy. In making this
determination, the Board has considered the provisions of 38
U.S.C.A. § 5107(b) regarding benefit of the doubt, but there
is not such a state of equipoise of positive and negative
evidence to otherwise grant the veteran's claim.
The evidence supports a 30 percent rating for residuals of a
fractured left os calsis with arthritis. The evidence also
supports a 30 percent rating for residuals of a fractured
right os calsis with arthritis.
ORDER
An increased rating for a herniated lumbar disc, status post
lumbar laminectomy, in excess of 40 percent, is denied.
A 30 percent evaluation for residuals of a fractured left os
calcis with arthritis is granted subject to the laws and
regulations governing the payment of monetary benefits.
A 30 percent evaluation for residuals of a fractured right os
calcis with arthritis is granted subject to the laws and
regulations governing the payment of monetary benefits.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs